In this Column . . .

Who Are the Lawyers on Sawyer?(contact information and email links)

And. . .Did You Know- About the American Rule on Attorneys Fees?- About the Unconstitutional and Unnecessary Proposed Special Events Permit for the City of Oshkosh?- How Mediation and Arbitration Help and Hurt the Legal Process- About Easements?-$8,000 First Time Homebuyer's Tax Credit-What To Do First When A Loved One Dies-Home Improvement Laws

FYI - We will post relevant comments & corrections after reviewing them. Just click on the comment link.

Saturday, February 7, 2009

A Good Samaritan volunteers help to those in need. I was surprised to learn that the California Supreme Court decided that Good Samaritans are liable for negligent care given in an emergency. The case was Van Horn v. Watson, S152360. Van Horn, a Good Samaritan, pulled a friend, Torti, out of a car after an accident. Torti became paralyzed, she sued Van Horn. Like many states, California has a Good Samaritan statute. In a divided opinion, the court held that the statute protected only persons giving emergency medical care. While this may have been a "good decision" to a legal scholar it leaves California with a bad law.

What about Wisconsin? The good news is that Wisconsin's Good Samaritan law applies to ANYONE who provides emergency care in an emergency. The good samaritan law - Wis. Stats. 895.48(1) - says, in part:

"Any person who renders emergency care at the scene of any emergency or accident in good faith shall be immune from civil liability for his or her acts or omissions in rendering such emergency care."

The bad news is that not everyone knows what emergency care is and which acts are covered?

The most recent case is Mueller v. McMillian Warner Ins. Co., 2008 WI 54. In Mueller, a teenager suffered a head injury near a north Wisconsin cottage owned by the family of a friend. The owner, Mrs. Switlick decided to monitor the teenager's symptoms before calling for help. She let the teenager sleep, but woke her every hour to see how she was doing. Six hours later, when the teenager showed signs of confusion, she was taken to the hospital and diagnosed with a skull fracture.

The Wisconsin Supreme Court considered how the law applied to a situation where a Good Samaritan provided care for six hours after becoming aware of the injury. The court ruled that "emergency care" means care rendered by a layperson in a sudden, unexpected happening, occurrence, or situation that demands immediate action until professional medical attention is available.

Then the court took two more steps. First, the court found that "emergency care" given by a layperson consists of "initial evaluation and immediate assistance, treatment, and intervention rendered to the plaintiff during the period before care could be transferred to professional medical personnel."

Then the court found a duty to call for medical help. Since the Switlicks waited for six hours to get medical help, the court found immunity did not apply. Writing a unanimous court, Chief Justice Shirley Abrahamson held that "[t]he care rendered by the Switlicks after the initial evaluation and immediate assistance, treatment, and intervention for longer than the period necessary to transfer care to professional medical personnel does not constitute "emergency care."

In other words, a Good Samaritan only has immunity if they call for medical help as soon as possible. Why? In the court's mind, this solution reflected the “legislative intent” of balancing two public policies. The legislature wanted to encourage bystanders to help those in need. And the legislature wanted to encourage laypersons acting as Good Samaritans to seek professional medical treatment.

The Wisconsin Legislature was apparently satisfied with this result. It revised the statute in 2007 without making any changes in the Good Samaritan Law, Wis. Stats. 895.48(1).

The decision leaves at least two (and probably more) questions unanswered. First, the decision may not be logical. It is said that bad facts make bad law. In this case, the Court was faced with an injured teenager under care of an adult who knew medical help might be required. One question that the court did not explicitly consider is whether a state of emergency is objective (the court decides what a reasonable person would think) or subjective (the Good Samaritan decides).it is easy to think of situations in which a person is not aware of the need for medical attention. One could argue that Mrs. Switlock’s decision not to seek assistance was part of her initial evaluation? On the face of the statute, shouldn’t an inaccurate (negligent) evaluation of when an emergency exists be protected by the same law that would protect negligent treatment?

Second, does a good Samaritan take on any other obligations besides calling for help? The court defined emergency care as care rendered until professional medical help is available. If a Good Samaritan leaves the scene after starting to help, would he or she be liable for injuries that might have been prevented? What if the Good Samaritan leaves the scene to call for help?

The Supreme Court has not yet answered these questions.

Meanwhile, play it safe. Call for help. And don't leave until help arrives.

For more information, email Ken Friedman, call him at 920-231-1500 or post a comment here.

(3) Generally, False, but contracts requiring one party to arbitrate and allowing the other to sue are sometimes unconscionable and, therefore, unenforceable.

(4) False. (self serving comments omitted)

(5) True. They agreed that she would do something for him, if he would go skiing in a couple of weekends. She included a provision that the agreement could not be revoked and was effective even if the contract document was destroyed or damaged. She had him sign it.

Quick Quiz: Mediation & Arbitration

Mediation and Arbitration are two forms of Alternative Dispute Resolution (ADR). True or False:

1. Mediators favor women and minorities

2. Most arbitrators are trained in the National Football League.

3. Arbitrators make money by selling something in the US and buying it back somewhere else.

4. Arbitrators have to follow Wisconsin Law

The answers are all False. Mediators are neutral. Most arbitrators are trained on the job. Arbitrators do not practdice arbitrage. Arbitrators do not have to follow the law, as long as they do not exceed their authority.

Quick Quiz: About Easements

Most of us are familiar with easements. The power company may have an easement for overhead power lines. A neighbor might have an driveway easement to cross a portion of your property or to share a driveway. Lakeshore properties may have granted easements allowing others to walk across the property and enter the lake. At the University of California at Santa Cruz, certain cattle ranchers had grazing easements for their farms over the grasslands on the lower 1,000 acres. The City of Neenah has the right to maintain Riverside Park as long as no alcohol is consumed there.

Pop Quiz: (Answers near the end of the post)

Do you know which of the following statements correctly describes an easement or easement law?

1. Easements are found with other Candies in Aisle 6 of Walgreens

2. Harry, next door, told me I can dig in his garden any time I want.

3. I signed a contract allow Jones Sign to put a Billboard 10 feet from my back lot-line.

4. I don’t know my neighbor, but I’ve been hunting quail on his land for 25 years.

5. My weekender neighbor doesn’t know, but my Dad and I have been fishing off his pier for 55 years.

6. If Curmudgeon’s snowplow breaks down and blocks your shared driveway, you can drive around it.

7. Wisconsin’s law of easements can be traced back to 450 BC.

The answers are: (1) No (2) No (3) Yes. Jones should record it as well. (4) This is a quail hunting easement. Your deer hunting friends are out of luck. (5) No. Too bad, because it is so easy to record an affidavit announcing your easement rights. (And so illegal, if you know you don’t have any). (6) a shared driveway may or may not be an easement. Either way, you can only drive around the snowplow in England, where you must remember to kept to the left. (7) Yes. Roman laws were kept secret until 450 BC when the first partial descriptions of the laws of Rome were published as the ten tables (revised as the twelve tables in 449 BC). Table VII outlined legal definitions and procedures for real property.

Now you know a little more about easements. For more information, read our post "About Easements" or call Ken Friedman at920-231-1500

Oct 30 - The American Rule on Attorneys FeesSept 16 - Unconstitutional Proposal for Special Events PermitJuly - How Mediation and Arbitration WorkJune 11 - Did You Know About Easements?May 2 - First Time Homebuyer Tax CreditApr 19 - What to Do When A Loved One DiesApr 12 - Wisconsin Home Improvement Laws Protect both Homeowners and ContractorsMar 7 - Wisconsin Laws Protect Consumers from False AdvertisingFeb 7 - In Wisconsin, Good Samaritans Must Call for Help & Stick Around

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DISCLAIMEREvery child needs a pet. Every lawyer needs a disclaimer. This blog is for entertainment and educational purposes only. "DID YOU KNOW?" provides a general overview of the law on the date of publication. You should only accept legal advice from an attorney who has listened to your story, reviewed any relevant documents and taken time to research the law. Moreover, the law can change depending on the circumstances, the facts you didn't disclose to your attorney, laws and regulations passed after the date of the post, exceptions that may apply to you, and the opinions of the judges, arbitrators and mediators assigned to your case. To the extent Kindt Phillips Friedman and Fremgen, SC, give bankruptcy advise, we are a debt relief agency.In other words, DO NOT rely on the information here to fully explain your rights in a court of law.